Atkins v. Baker

Opinion oir tiie coukt by JUDGE DUREILLE — Reversing. L. E. Atkins was a widower with five children at the time he married Lucy Baker. Subsequent to their marriage Lucy Baker Atkins purchased a tract of land for $400, and died childless. L. E. Atkins then married appellant, Geneva Atkins. Appellee, Baker, brought suit for the land, claiming it as the only brother and heir-at-law of Lucy Baker Atkins. Geneva Atkins defended, claiming a homestead in the property. The sole question is the construction of the deed. The deed is between David Mattingly and wife, [880] of the first part, and Lucy Atkins, wife of L. E. Atkins, of the second part, and, after reciting the consideration, proceeds : “The parties of the first part have sold, and do hereby convey, unto the party of the second part, the foil owing-tract of land [describing it]; to have and to hold unto said Lucy Atkins' forever, with' covenant of general warranty. In testimony whereof, witness our signatures this 22d day of July, 1892. This conveyance, at the request of said Lucy Atkins, is made to her for and during her life, and at her death to go to her -husband, L. E. Atkins, should he survive her; and, in the event said Lucy Atkins should leave a child or children, then this land shall descend to them and their father according to the laws of descent.” (The signatures and the clerk's certificate follow.) For appellee it is claimed that the words of grant and the habendum clause convey what, under the statute (section 2342, Kentucky Statutes), is an absolute fee, and that the condition imposing a limitation upon the estate conveyed to Lucy Atkins is clearly repugnant to both the granting clause and the habendum o*f the deed, and therefore void under the common-law rule that “a fee can not, at common law, be limited to a fee, as, if lands are limited to one and his heirs, and, if he dies without heirs, then to another, this last limitation is void.” Fearne, Rem., 373. The case of Lee v. Lee, 7 B. Mon., 605, is relied on, which presents the exact case supposed in the quotation from Fearne, and was decided in accordance with that doctrine. Ball v. Hancock’s Admr., 82 Ky., 107 (5 R., 883) is also relied on. In that case the deed under consideration not only recited a previous promise to convey the property to the grantee, but gave her the absolute disposition of the property by deed or will, at her pleasure, and it was held to pass a fee. In Ratcliffe v. Marrs, 87 Ky., 27 (10 R., 134) (7 S. W., [881] 395), 8 S. W., 876, the rule laid down in Turman v. White’s Heirs, 1-1 B. Mon., 572, as to the application of the rule in Shelley’s Case in this State, was disregarded, and a deed to William, “to have and to hold said tracts of land, with their emblements, to said William aforesaid, during his natural life, and after that to liis heirs, forever,” executed before the adoption of section 10, alt. 1, c. 63, Gen. St., was held to pass a fee simple to William. The first rule of construction is to reconcile all parts of the document. Spurrier’s Heirs v. Parker, 16 B. Mon., 274. A construction which creates a repugnancy must be rejected. Adie v. Cornwell, 3 T. B. Mon., 276. It is a well-recognized rule that that construction will be favored which avoids a repugnance in the terms of the instrument construed. The statute relied on provides: “Unless a different purpose appear by express words or necessary inference, every estate in land created by deed or will without words of inheritance shall be deemed a fee simple, or such other estate as the grantor or testator had power to dispose of.” Where must such different purpose appear? It must appear in the terms of the instrument under consideration. And so, in Henderson v. Mack, 82 Ky., 380, 381 (6 R., 313) we find a deed in which it is recited in the granting clause that the grantors “do hereby sell, grant, and convey to the party of the second part, his heirs and assigns, the following described property ... to have and to hold the same, with all the appurtenances thereon, to the second party,his heirs and assigns, forever, with covenant of general warranty, during his natural life, and after his death to go to and belong absolutely to Belle Mack, she paying the ’ unpaid purchase money, as aforesaid.” It was held, in an opinion by Judge Holt, that: “The proper end of all rules [882] of construction is to effect the intention of the parties to the instrument; and the intention of the grantor in a deed is to govern, where it can he ascertained, equally as in the case of other instruments. In arriving at it the entire paper must be considered. Blackstone says that the construction must ‘be made upon the entire deed, and not merely upon disjointed parts of it.’ If clauses are repugnant to each other, they must be reconciled if possible; and the intent, and not the words, is the principal thing to be regarded. The technical rules of construction are not to be resorted to when the meaning of the party is plain and obvious. Noyes v. Nichols, 28 Vt., 159. In Jackson v. Myers, 3 Johns., 383, 3 Am. Dec., 504, Kent, C. J., states the rule in these words: ‘The intent, when apparent, and not repugnant to any rule of law, will control technical terms; for the intent, and not the words, is the essence, of every agreement. In the exposition of deeds the construction must be upon the view and comparison of the whole instrument, and with an endeavor to give every part of it meaning and effect.” Applying these rules of construction to the deed in question, we can not escape the conclusion that it was intended by it to create but a life estate in James E. Young, with a remainder right in Belle Mack.” We regard this case as conclusive of the case at bar. There is an addition in each ■ of the cases to the habendum clause, and in both cases this addition comes' after the covenant of general warranty. But in the Henderson Case it was held that the technical words importing a fee, and used both in the granting and habendum clauses, must yield to the manifest intent as expressed by the addition to the habendum clause. We are of opinion, therefore, that the deed conveyed a life estate to Lucy Atkins, with remainder to her husband in fee, subject to be divested by Lucy leaving a surviving child or children. [883] From this it must follow that tlie widow is entitléd to a homestead, subject to the right of the unmarried infant children of the husband to joint occupancy, under- section 1707, Kentucky Statutes. For the reasons given, the judgment is reversed, and cause remanded, with directions to overrule the demurrer to the answers and sustain the demurrer to the petition: . Petition for rehearing by appellee overruled.